R v Wallace aka Warahi aka Ihoa

[2024] NZHC 3450

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT: SEE PARAGRAPH [36]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-003355

[2024] NZHC 3450

THE KING

v

JAY MAUI WALLACE aka

MAUI WARAHI aka MAUI WHARE IHOA

Hearing:

19 November 2024

Appearances:

C Howard for Crown

I Stewart for Defendant

Sentence:

19 November 2024

SENTENCING NOTES OF MOORE J

Solicitors:

Kayes Fletcher Walker, Manukau

R v WALLACE [2024] NZHC 3450 [19 November 2024]

[1]        Maui, you may remain seated until the very end of this process which is the time when I formally pass sentence. At that point I will ask you to stand. Until then you may remain seated.

[2]        Maui, you appear for sentence today having pleaded guilty to the manslaughter of your cousin, Leon Wallace.1

[3]        On 11 July 2024, I gave you a sentence indication.2 I indicated a starting point of five years’ imprisonment, uplifted by 10 per cent for your criminal history and reduced by 15 per cent for any guilty plea. Through your counsel, Ms Stewart, you accepted that sentence indication on 25 July 2024. You then appeared before me for arraignment on 30 July 2024 and pleaded guilty to manslaughter. I then set down this sentencing for today’s date, so that sufficient time could be given for sentencing reports to be prepared and filed.

[4]        Those reports have now been received. They give insight into your upbringing and background, and to your rehabilitation to date. Having now had the benefit of reading these reports and considering the submissions of counsel, it is now my task to sentence you.

Facts

[5]        The facts of your offending are well known to you. I set them out when I gave you the sentence indication. However, because sentencing is quintessentially a public function and must be conducted in open Court, it is necessary for me – in this public setting – to repeat them. They are these.

[6]        On the evening of 14 April 2023, you visited the home of Melody Hayes. You were with Ms Hayes’ brother, Darcy. Ms Hayes was the partner of your cousin, the victim in this matter, 60-year-old  Leon Wallace.  In these remarks  I shall  refer to Mr Wallace as Leon to avoid any confusion arising out of the surname you share.

1      Crimes Act 1961, ss 171 and 177. Maximum penalty life imprisonment.

2      R v Wallace (aka Maui Warahi) [2024] NZHC 1900.

[7]        While there, Darcy  asked  to  borrow  Ms  Hayes’  car  for  several  hours. Ms Hayes agreed. The expectation was that the car would be returned later that evening. Shortly afterwards you and Darcy left in the car.

[8]        Later that evening, Ms Hayes became concerned about where her car was. She tried unsuccessfully to contact her brother. It was not until the following day that she managed to make contact with Darcy. He told her that he had given the car to you for you to return the previous evening.

[9]        Leon and Ms Hayes both attempted to contact you to get the car back. Unsuccessful, Ms Hayes contacted the Police a day later on 16 April 2023. She reported the car as stolen. She also contacted the finance company that had a registered interest in the vehicle to see if they were able to track its whereabouts. The finance company told her that the car was on a street in Hill Park. This was the address of a townhouse connected to you.

[10]      At around midday on 17 April 2023, Ms Hayes, Leon and their neighbour – who I shall refer to as “A” – drove in A’s car to the townhouse. The townhouse was part of a group of houses accessed via a private driveway with a security gate at its entrance. On arrival, Ms Hayes and A waited in the car. Leon got out and climbed over the gate. He then headed down the drive to find Ms Hayes’ car.

[11]      The car was parked in one of the parking bays at the end of the driveway. It was there that Leon first met up with and spoke to you.

[12]      In preparing for my sentence indication, I viewed and reviewed the video footage of what happened multiple times. It was extremely instructive because a precise description of what happened is not easily captured in a written narrative. As such, much of what follows is drawn from what that footage shows and my conclusions drawn from it, conscious as I am of the relevant standard of proof.

[13]      The video footage shows that after you and Leon spoke, Leon turned and started to walk back towards the gate. However, he did not get far. He turned back and faced you when you were then some metres away. From the video, which has no

audio, it looks like the two of you were shouting at each other. Leon held his ground. You approached him. You were swaggering in a threatening and aggressive way; legs apart and arms out from your sides. As you did, Leon retreated backwards. You then continued to advance in his direction.

[14]      Then, when you got within striking distance, you suddenly threw a single punch using your left fist. It connected with the right side of Leon’s head. Leon immediately fell backwards. The back of his head hit the concrete driveway. You stood over Leon who lay flat on his back, not moving. You stepped around him and kicked at his left arm before grabbing something out of his hand.

[15]      It seems that from about this point you realised that Leon may have been injured. You slapped him twice in the face. Whether this was a continuation of the assault or an attempt to rouse Leon is uncertain, although I am inclined to favour the latter. However, from this point on, I am satisfied that the assault was at an end and that the balance of your actions towards Leon, while hardly tender, were not driven by malice or a desire to further hurt your victim.

[16]      Over the next five to ten minutes, you can be seen trying to rouse Leon. You pushed him and you prodded him. At one point, you picked his upper body off the ground and shook him vigorously. Two associates can be seen coming out of the townhouse. With you, they repeatedly tried to rouse Leon and get him to his feet. You were partially successful, but it is obvious from the footage that Leon was drowsy and unable to support himself on his own. He was dragged to a nearby plastic chair which had been brought out for him to sit in.

[17]      It was around this time that the security gate to the housing complex opened because a vehicle went to leave. This enabled Ms Hayes, who had got out of A’s car, to walk down the driveway. There, she found the semi-conscious Leon seated slumped in the chair.

[18]      Meanwhile, you left the immediate scene. You walked up the driveway and opened the gate with your security card. You got into A’s car and drove it back down where Leon was sitting. You then parked the car beside him. Ms Hayes helped guide

Leon into the back seat. As she did so you can be seen gesticulating and mouthing off. Ms Hayes said that you threatened to “knock [her] the fuck out too” if she called the Police.

[19]      A then drove Ms Hayes and Leon back to their homes. However, fifteen minutes later, Ms Hayes called an ambulance because Leon complained that he had a sore head and that you had “blind spotted” him. An ambulance arrived shortly afterwards.

[20]      Leon was taken to hospital for urgent medical examination and treatment. This revealed that he had suffered a traumatic head injury. He died from his injuries a week later, on 26 April 2023.

Victim impact statements

[21]      I have received two victim impact statements. The first is from Leon’s daughter, Jodanna. Jodanna mourns the loss of her father, noting particularly that it was you – his own cousin – who Leon was trying to help. She described seeing Leon lying in hospital as being a horrible experience and one she would not want anyone to have to go through.

[22]      The second statement is from Ms Hayes’ daughter, Tina. Tina mourns the loss of Leon and her late mother, who had to make the heart-wrenching decision to take Leon off life support. She speaks to how difficult that period was for her mother, and prays that you acknowledge the pain and suffering you caused to her and Leon’s whānau.

Approach to sentence

[23]      As I explained at the indication, sentencing involves a two-stage process.3 The first stage requires that I set a starting point that reflects the seriousness of the offending, taking into account any aggravating or mitigating features of the offence itself. The second stage then requires me to adjust that starting point – up or down –

3      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

to take account of the offender’s personal circumstances. At both stages, I must have in mind the relevant purposes and principles set out in the Sentencing Act 2002.

Starting point

[24]      So I start, as I must, with the starting point for your offending. In my sentence indication, I said that your offending involved three aggravating factors:

(a)first, it involved an attack to Leon’s head with obviously fatal consequences;

(b)secondly, the assault was not confined to a single punch, albeit only to a limited extent; and

(c)finally, the offending resulted in the loss of Leon’s life, with devastating consequences for his whānau and friends.

[25]      I observed that your offending was gratuitous and unprovoked. I noted that Leon was retreating backwards at the time the fatal blow was struck. I stated that while your offending was not premeditated, neither was it entirely reactive. The punch to Leon’s head was unexpected. It took him by surprise and without any opportunity for him to defend himself or to take any self-protective measures. He fell backwards onto the concrete immediately after the blow was struck. I recorded that the assistance you provided Leon in the aftermath had to be tempered by the threats you made to Ms Hayes about contacting the Police.

[26]      Taking those circumstances into account, I indicated a starting point of five years’ imprisonment.

Personal factors

[27]      I now turn to your personal factors. Given your criminal history, I indicated that an uplift of six months’ imprisonment (or 10 per cent) was appropriate. I also indicated that a guilty plea discount of 15 per cent would be warranted. I said however

that further adjustments might be called for, depending on the information provided in your pre-sentence and other reports.

[28]      As I have mentioned, that further information has now been provided. Specifically, the Court has received five documents:

(a)a comprehensive alcohol and drug assessment report;

(b)a Hōkai Tapuwae report;

(c)a support letter from the Fatimah Foundation;

(d)a pre-sentence report; and

(e)a restorative justice memorandum, advising that a restorative justice conference was unable to proceed.

[29]      In light of that information, I consider two further reductions to be warranted. These are reductions for your personal background and in recognition of your remorse and prospects of rehabilitation. Let me develop both.

Personal background

[30]      The information I have received provides a useful and important insight into your personal circumstances. To protect your privacy, I will not repeat the detail of it here. However, because sentencing is such a public exercise, I must necessarily refer to the factors identified which, in my view, help explain why you came to offend and the justification for the discount which I consider is appropriate on account of your upbringing and personal circumstances.4 Let me list them:

(a)first, you were exposed to serious violence, trauma, alcohol and drug use from an early age;

(b)secondly, you left school at the age of 14 while still illiterate;

4      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[112].

(c)thirdly, you suffered abuse while in state care, following which you became immersed in the Mongrel Mob and descended into a pattern of drug and alcohol abuse and criminal offending; and

(d)finally, preliminary diagnoses have been made which indicate that you suffer from PTSD and ADHD.

[31]      Your counsel, Ms Stewart, submits that a discount of 20 per cent is warranted. The Crown agrees that such a discount is within range. I also agree. It is clear to me that your upbringing predisposed you to violence and that the factors I have mentioned help explain why you came to offend against Leon as you did. I consider a 20 per cent discount to be warranted.

Remorse and rehabilitation

[32]      I now come to your remorse and prospects of rehabilitation. As Ms Stewart emphasised, you have had a strong desire to participate in restorative justice. The restorative justice memorandum which I have read confirms that willingness. You are also evidently remorseful for what you have done, as displayed in what you said to me in open Court this morning.

[33]      I also agree with Ms Stewart that you have taken considerable steps towards rehabilitation. You have taken a number of rehabilitative courses while in custody, including courses on basic life skills, alcohol and other drug relapse prevention and anger management intervention tools. You are leaning on your faith for support. You are in a positive long-term relationship with your partner, who I acknowledge is here today to support you. When you were recently granted compassionate bail to attend the tangi of a family member, you returned back to custody as required, which is an important change given your previous history of non-compliance and anti-authority views. These are all positive steps worthy of recognition at sentencing. I agree with counsel that a five per cent discount is warranted.

End sentence

[34]And so, Maui, I come to adopting an end sentence in the following way:

(a)a starting point of five years’ imprisonment;

(b)uplifted by 10 per cent to reflect your previous criminal history; and

(c)discounted by 15 per cent for your guilty plea; 20 per cent for your personal background; and 5 per cent for your remorse and rehabilitative prospects.

[35]      That brings me to an end sentence of 42 months’ or three years and six months’ imprisonment.

Suppression

[36]      Finally, before handing down sentence, Ms Stewart has sought suppression of certain information contained in your alcohol and drug report. I have not referred to that information in these sentencing notes, but I do make an order suppressing that information in any event. There is no conceivable public interest in publication and I do not see any members of the media, in any event, in the courtroom.

Result

[37]      Maui, would you please stand. On the charge of manslaughter for the death of Leon Wallace, I sentence you to three years and six months’ imprisonment.

[38]      Before you leave the Court, I want to make a few comments about you. I reserve comments of this kind to just a few cases. I don’t often do it. They are for cases where I believe there is cause for hope and cause for optimism.

[39]      You are 49 years of age. You have a shocking criminal history of violence, some drugs, and disobeying Court and other orders. For many of your age and stage it is simply too late to break the cycle of offending and you might be expected to be consigned to life in prison.

[40]      But it does seem to me, and I hope not naively, that you have some insight into your actions which suggest, as Ms Stewart submitted to me and as you addressed me so eloquently from the dock, that you may have turned a corner. I certainly hope so.

This was your cousin you killed and you are going to have to carry that burden for the rest of your life. You tried to engage in restorative justice. That didn’t happen through no fault of your own. You have actively engaged in relevant rehabilitation programmes, apparently successfully. Your background and the diagnoses which I mentioned earlier help explain how this tragedy unfolded.

[41]      Use what limited time you may have in prison and beyond, use that time wisely and to improve yourself because I believe that you have it in you to do so. You have the support of a loving whānau. You have the support of a loving and pro-social partner. Good luck.

[42]Stand down please.

Moore J